Understanding the nuances of survival and wrongful death actions

A wrongful death action is an action brought by the family members of a decedent. In many instances, it is the spouse and/or children of the decedent. In other instances, it is the parents of the decedent. A wrongful death action belongs to the surviving heirs. In essence, it is an independent claim on behalf of the decedent’s heirs for damages they personally suffered on account of the death. See C.C.P. § 377.60.

A survival action is an action that belongs to the estate of the decedent. If a person dies having a cause of action for injuries suffered during life, the claim “survives” to their estate under CCP § 377.20. See C.C.P. §§ 377.20, 377.30; Adams v. Sup.Ct. (Centinella Freeman Regional Med. Ctr.)(2011) 196 CA4th 71, 78-79.

A survival action is typically joined as part of the overall case. So, at the pleading stage, it’s imperative to plead a survival cause of action that sets forth the necessary facts that the decedent lived for some period following the incident and during that time experienced pain, suffering, and/or disfigurement.

It is important to understand the differences between a survival action and a wrongful death action because each action has limitations as to the kinds of damages recoverable. And when possible, it’s essential to the value of the overall case to bring both actions if the evidence supports it.

Changes to C.C.P. Section 377.34

For years, a survival action was limited to economic damages, such as medical bills, lost earnings, or property damage incurred before death.

But this all changed on Jan. 1, 2022. CCP § 377.34 now allows recovery for pain, suffering, and disfigurement damages in all actions filed on or after Jan. 1, 2022, and before Jan. 1, 2025.

Evidence and witnesses

What significance does pain, suffering, and/or disfigurement evidence under a survival cause of action have?

In a situation where you have a decedent who was conscious for a while before death, there is an immense opportunity to introduce to the jury evidence that would have previously been excluded.

What sort of evidence am I talking about?

In many instances, the person who ends up dying is experiencing feelings of panic or impending doom. The dying person is speaking of their loved ones (many of whom become the holders of the wrongful death action), saying how much they love them and how they don’t want to die.

In other situations, the dying person is asking a nearby witness to deliver a message to their loved ones, signaling how much they cherish and will miss them.

In these moments, the dying person’s suffering can be captured in statements of desperation, battling to breathe to stay alive, to be there for the ones they love, or at least to see their loved ones one last time to say goodbye.

The power of this evidence is in its emotional impact and what it leaves the jury feeling.

How do you prove pain, suffering, and/or disfigurement when the individual is unconscious?

The most vital component is showing the decedent was alive for the longest period possible.

The first responders will play a critical role in proving that the decedent was still alive when they arrived at the scene. For instance, they saw the decedent’s chest move in a way consistent with breathing, felt a pulse, heard moaning, etc.

Another important piece is that the first responders provided CPR to the decedent because that shows oxygen being delivered to the brain. In many instances, the decedent is transported to the hospital in an ambulance, and the paramedics continue to work on the individual, or the emergency room doctors and nurses provide care to the individual that they would not have otherwise done if they felt the individual was already deceased.

Finally, it is essential to retain an expert witness who will consider all the evidence and assist the jury to understand that even though an individual may be unconscious, feelings of pain are still experienced. For instance, when CPR is administered, enough oxygen is circulated to reach the brain stem where pain receptors exist. Many times, the kind of experts who have the necessary experience in this area are pathologists or emergency room doctors.

How do you defend against pain, suffering, and/or disfigurement under a survival cause of action?

From a defense perspective, the opposite is true. Establishing that the decedent died simultaneously or close in time to the incident is the best way to minimize the pain, suffering, and/or disfigurement damages.

In many instances, the defense can take the depositions of the first responders and establish that even though life-saving techniques were used, they were done as a last-ditch effort or simply because of protocol, and that the individual was non-responsive. For example, when the first responders used the defibrillators, the only activity shown was pulseless electrical activity.

Another objective witness that may have special significance is the coroner. The coroner, serving as a non-retained expert witness, can boost credibility as a neutral witness and often undermine the time of death. In many situations, the coroner has the necessary experience to show that the individual died long before the actual time of death was established. This is based on their examination of the injuries and their effects on the cardiovascular system and neurological pathways.

Conclusion

While there is no perfect recipe to present pain, suffering, or disfigurement in a survival cause of action, there are certain ingredients that must be included.

And, in the cases where the decedent was conscious for some time before dying, the emotional impact of their feelings of doom and struggle to live is one that many of the jurors relate to, which will serve to increase the amount of damages awarded.